RIZZO v. LANDMARK REALTY CORPORATION

Judgment and order reversed on the law, with costs to the appellants, and defendant's motion for judgment on the pleadings denied, with $10 costs. Memorandum: We feel that the Special Term was in error in granting defendant's motion for judgment on the pleadings. Section 240-a Real Prop. of the Real Property Law does not deprive a vendee of the right of specific performance with abatement. Said section (subd. 1, par. [a]) renders unenforcible insofar as the vendor is concerned the right to specific performance when the loss is material. It does not, however, destroy any common-law right of the vendee to specific performance with abatement. (See Bostwick v. Beach, 103 N.Y. 414, 422, and Warren v. Hoch, 276 App. Div. 607.) All concur. (Appeal from a judgment dismissing plaintiffs' complaint in an action for specific performance.)